Who Has the Burden of Proof in Proving Marital Property?
The spouse who claims that a
particular piece of property is marital has the burden of proof to show that
the particular piece of property at issue is marital. Only marital property is
subject to an equitable division in a divorce in Georgia. That is, a spouse's
separate property is not subject to division. The court determines, based upon the
evidence presented, whether a particular piece of property is marital or
separate.
What Is Burden of Proof in a Divorce Case in Georgia?
The burden of
proof in a divorce case in Georgia, which is a civil matter, is preponderance
of the evidence. The preponderance of the evidence standard is satisfied if the
evidence presented by the claimant shows that a fact is more likely to be true than
not to be true.
Burden of Proof to Show a Particular Piece of Property Is Marital
Under current case law in Georgia, proving that a particular piece of property is marital---and, therefore, subject to division---is the proponent's responsibility. The seminal case cited by subsequent cases for the rule of law that the spouse requesting the division of a particular piece of property in a divorce in Georgia is Barber v. Barber, 257 Ga. 488 (1987). There, the Supreme Court of Georgia held that the trial court's jury charge regarding the burden of proof related to marital property was correct in that it instructed the jury that the spouse "claiming a right, including property division, has the burden of proof to establish that right." Barber v. Barber, 257 Ga. 488, 489 (1987).
Subsequently, the Georgia Supreme Court, citing Barber, held
that "[the spouse wanting division of property] had the burden of proving that
[the property at issue] were marital assets." Dasher v. Dasher, 283 Ga.
436, 437 (2008). The Court of Appeals of Georgia subsequently held similarly
that "[t]he party seeking a division of contested property has the burden of
proving that it is a marital asset." Boomer v. Boomer, 367 Ga.App. 280,
281 (2023). Further, "[p]roperty does not become a marital asset simply because
one of the spouses obtains it during the course of the marriage." Id. See
also Jones-Shaw v. Shaw, 291 Ga. 252 (2012) (affirming the trial court's
exclusion of a closely-held non-profit corporation from equitable division in a
divorce case where the wife failed to establish that the corporation at issue
was subject to equitable division or that the corporation's appreciation, if
any, during the period that the parties were living together was a result of
her efforts).
Necessity of Clarification Regarding Burden of Proof Related to Marital Property
Under the Barber
line of cases, the burden of proof to show that a specific piece of property is
marital property falls on the proponent, and if the proponent fails to meet
this burden of proof, then the specific property may be excluded from division.
However, this rule of law arguably could conflict with O.C.G.A. § 24-14-1
("Party with burden of proof"), which states as follows: "The burden of proof
generally lies upon the party who is asserting or affirming a fact and to the
existence of whose case or defense the proof of such fact is essential. If a
negation or negative affirmation is essential to a party's case or defense, the
proof of such negation or negative affirmation shall lie on the party so
affirming it."
For example, if the wife argues that
property A is her separate property because she inherited it from her parent
(and did not take any subsequent actions to somehow transform that property into
marital property), but her spouse disagrees with that argument by alleging that
property A is marital property, who would have the burden of proof regarding
this disputed property? During the final trial, would the wife just sit back
and watch her spouse present evidence in an attempt to show that property A is
marital property, relying on the case law that her spouse must meet the burden
of proof to show that property A is marital property or would she present her
own evidence to prove her position that property A is indeed inherited
property? Perhaps there needs to be clarification on how to reconcile the Barber
line of cases with O.C.G.A. § 24-14-1.
Determination of whether a specific
piece of property in a divorce case in Georgia is marital or separate is a very
important factor with significant ramifications. Therefore, if your divorce
case involves such disputed property, it may be wise to consult with a Georgia
Divorce Lawyer regarding your rights and strategy.